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Armed with a
knife, Wilson entered the home of his neighbor, Jacqueline M. Stephens,
early on the morning of March 27, 1993. Wilson knew Ms. Stephens because
his cousin was her boyfriend.

Wilson ordered
Ms. Stephens, 31, her 12-year-old daughter and the daughter's 14-year-old
friend to disrobe. He blindfolded the girls and tied them to a bed in
the daughter's room.

Over several
hours Wilson threatened the girls and Ms. Stephens. On one visit to the
girls' room he cut each of them. He then went into Ms. Stephens' room,
and the girls heard her scream as Wilson demanded her car keys.

A neighbor who
heard the commotion called police when he saw Wilson drive off in Ms.
Stephens' car. Police found Ms. Stephens tied to the bed posts, her body
covered with blood. She had been stabbed more than 10 times. The friend
had a stab wound on her neck while the daughter was stabbed close to the
carotid artery and jugular vein. Her vocal cord nerve was severed.

Kenneth Wilson, 34, was put to death by injection at the
Greensville Correctional Center. He was pronounced dead at 9:09 p.m.

Wilson made no final statement and did not give a
response when asked by Warden David Garraghty if he had anything to say.

Earlier in the day, Wilson met with his parents, a
sister and his 2 sons.

Larry Traylor, a Department of Corrections spokesman,
said relatives of the victim's family had been expected to attend the
execution but did not show up.

As the execution hour approached, about a dozen death
penalty opponents waited outside the main prison gate.

On Monday, the U.S. Supreme Court voted 7-2 to deny
Wilson a stay of execution.

Wilson's lawyers had asked Gilmore to commute their
client's death sentence to life without parole for the sake of Wilson's
sons, ages 13 and 6.

"Losing a parent to execution is different than
losing a parent another way. When a parent dies from illness or even
homicide, sympathy and community support for the children of the
deceased abounds. Not so with the children of a person who is executed,"
the petition said.

But Gilmore, in denying clemency, noted that Wilson
was on parole when Jacqueline M. Stephens was killed in Newport News on
March 27, 1993.

"He also bound, stabbed and, for 3 hours,
terrorized Ms. Stephens' 12-year-old daughter and another 14-year-old
girl who was spending the night in Ms. Stephens' home," Gilmore
said. "There never has been any question as to Wilson's guilt."

Armed with a knife, Wilson entered the Stephens home.
Wilson knew Ms. Stephens because his cousin was her boyfriend.

Wilson ordered Ms. Stephens, 31, her daughter and the
daughter's friend to take off their clothes. He blindfolded the girls
and tied them to a bed in the daughter's room.

Over several hours Wilson threatened the girls and Ms.
Stephens. On one visit to the girls' room he cut each of them.

He then went into Ms. Stephens' room, and the girls
heard her scream as Wilson demanded her car keys.

Police found Ms. Stephens tied to bed posts, her body
covered with blood and what appeared to be semen on her leg. She had
been stabbed more than 10 times.

The friend had a stab wound on her neck; the daughter
was stabbed close to the carotid artery and jugular vein. Her vocal
chord nerve was severed.

In Jarratt, Kenneth Wilson, convicted of stabbing his neighbor to death
after tying the woman to a bed and attempting to rape her, was executed
Tuesday night, a few hours after Gov. Jim Gilmore rejected a clemency
plea.

Wilson, 34, was put to death by injection at the Greensville
Correctional Center. He was pronounced dead at 9:09 p.m.

Wilson made no final statement and did not give a response when asked by
Warden David Garraghty if he had anything to say.

Earlier in the day, Wilson met with his parents, a sister and his 2
sons.

Larry Traylor, a Department of Corrections spokesman, said relatives of
the victim's family had been expected to attend the execution but did
not show up.

As the execution hour approached, about a dozen death penalty opponents
waited outside the main prison gate.

On Monday, the U.S. Supreme Court voted 7-2 to deny Wilson a stay of
execution.
Wilson's lawyers had asked Gilmore to commute their client's death
sentence to life without parole for the sake of Wilson's sons, ages 13
and 6.

"Losing a parent to execution is different than losing a parent another
way. When a parent dies from illness or even homicide, sympathy and
community support for the children of the deceased abounds. Not so with
the children of a person who is executed," the petition said.

But Gilmore, in denying clemency, noted that Wilson was on parole when
Jacqueline M. Stephens was killed in Newport News on March 27, 1993.

"He also bound, stabbed and, for 3 hours, terrorized Ms. Stephens'
12-year-old daughter and another 14-year-old girl who was spending the
night in Ms. Stephens' home," Gilmore said. "There never has been any
question as to Wilson's guilt."

Armed with a knife, Wilson entered the Stephens home. Wilson knew Ms.
Stephens because his cousin was her boyfriend.

Wilson ordered Ms. Stephens, 31, her daughter and the daughter's friend
to take off their clothes. He blindfolded the girls and tied them to a
bed in the daughter's room.

Over several hours Wilson threatened the girls and Ms. Stephens. On one
visit to the girls' room he cut each of them.

He then went into Ms. Stephens' room, and the girls heard her scream as
Wilson demanded her car keys.

Police found Ms. Stephens tied to bed posts, her body covered with blood
and what appeared to be semen on her leg. She had been stabbed more than
10 times.

The friend had a stab wound on her neck; the daughter was stabbed close
to the carotid artery and jugular vein. Her vocal chord nerve was
severed.

Appeal
from the United States
District Court for the
Eastern District of
Virginia, at Alexandria.
James C. Cacheris, Senior
District Judge.

Before
WILKINSON, Chief Judge, and
NIEMEYER and MICHAEL,
Circuit Judges.

OPINION

WILKINSON,
Chief Judge:

Kenneth
L. Wilson raises various
claims regarding his mental
capacity at the time of
Jacqueline Stephens' murder.
Wilson was sen- tenced to
death for that offense. He
appeals the district court's
dis- missal of his amended
petition for a writ of
habeas corpus. We affirm the
district court's judgment.

I.

On March
27, 1993, Jacqueline
Stephens was found naked,
bound in a spread-eagle
fashion to her bed, with
multiple stab wounds in her
chest, neck, cheek, eyebrow,
and arm.

The
events that led to this
tragedy began at
approximately 3:00 a.m. that
morning when Wilson entered
Stephens' home in Newport
News, Virginia. At
knifepoint, he forced
Stephens, her twelve year-old
daughter Altomika, and
fourteen year-old Takeshia
Banks upstairs.

Wilson
ordered Altomika and
Takeshia into a bedroom and
took Jacqueline into her own
bedroom. While Wilson and
Jacqueline were in her
bedroom, Altomika heard her
mother say "Kenny, why you
doing this to me? I go with
Pinkey [Altomika's father],
why you doing this to me?"

Approximately twenty-five
minutes later, Wilson and
Jacqueline returned to the
bed- room where the girls
were. At Wilson's request,
Jacqueline told the girls
not to say anything; she
then took a shower. While
Jacqueline was showering,
Wilson ordered Takeshia to
disrobe, tied both girls to
a bed, and blindfolded them.
Wilson, while naked,
proceeded to stab both
girls, cutting them in the
neck.

After
Takeshia screamed,
Jacqueline confronted Wilson
in the hall- way. A struggle
between Wilson and
Jacqueline then ensued, and
Altomika thought she heard
her mother fall down the
stairs.

Altomika
and Takeshia escaped their
bindings and barricaded the
bedroom door, but Wilson
soon returned and threatened
to kill Jacqueline if the
girls did not open it. The
girls complied, and Wilson
secured their bindings and
blindfolded them again. He
then left the room briefly
but soon returned and
taunted the blindfolded
girls with the knife. Wilson
left again, yelling at
Jacqueline to find her car
keys.

Altomika
heard her mother begin to
scream then suddenly stop
screaming. Wilson returned
once more, threatened to
kill the girls, then
withdrew. A neighbor saw
Wilson depart in
Jacqueline's vehicle at
approximately 6:30 a.m.
Shortly thereafter, the
police found Jacqueline's
naked body covered with
blood and tied to her bed.
Pubic hairs and a dried
white substance which
appeared to be semen were
observed on her body.

A few
hours later, police found
Wilson in a trash dumpster,
acting "peculiar." Blood
tests taken at a hospital
the next day revealed
cocaine and opiates in his
system. He also was
experiencing rhabdomyolysis, a condition
involving the breakdown of
muscle tissue produced by
severe intoxication with
certain drugs, including
cocaine.

Wilson
was charged with murder
during the commission of
attempted rape, attempted
rape, grand larceny, and
several counts of abduction
and malicious wounding.
Wilson's original trial
counsel requested a
psychological evaluation to
determine both Wilson's
competency to stand trial
and his sanity at the time
of the offense.

On May
10, 1993, Dr. Don Killian, a
court-appointed clinical
psychologist, reported
that Wilson was competent to
stand trial. In a separate
report, with the heading "for
defense attorney only," Dr.
Killian also reported that
Wilson was sane at the time
of the offense. In late October, Wilson's new trial
counsel filed a "Motion for
Neurological, Psy-
chological, Psychiatric and
Physical Evaluation of the
Defendant."

The trial
court granted the motion on
October 27 and appointed Dr.
Killian to conduct the
evaluation. Dr. Killian
again met with Wilson on
November 5, but this time
Wilson declined to discuss "his
thoughts, feelings, or
actions" around the time
when the crime occurred and
stated that his attorneys
had advised him not to "discuss
the details of these
activities with anyone." At
a November 15 hear- ing,
Wilson confirmed that he did
not want to speak to Dr.
Killian.

After the
trial, at which Wilson
testified, a jury convicted
him on all counts. Following
the sentencing phase, the
jury recommended a death
sentence based on findings
of future dangerousness and
vile- ness, and the trial
court later sentenced him to
death. On appeal, the
Virginia Supreme Court
upheld the conviction and
sentence. Wilson v.
Commonwealth , 452
S.E.2d 669 (Va. 1995).

The
conviction became final on
October 2, 1995, when the
United States Supreme Court
denied certiorari. Wilson
v. Virginia , 516 U.S.
841 (1995). The Virginia
Supreme Court later denied
Wilson's petition for a writ
of habeas corpus. After the
district court subsequently
denied his federal petition,
Wilson brought this appeal.
Since Wilson filed his
federal petition in 1997, it
is governed by the
noncapital provisions of the
Antiterrorism and Effective
Death Penalty Act ("AEDPA").
See Lindh v. Murphy ,
117 S. Ct. 2059 (1997);
Green v. French , No.
97-25, 1998 WL 237506, at *2
(4th Cir. May 13, 1998).

II.

Wilson
alleges several trial errors
relating to his mental
health. He attributes these
errors to two parties: his
court-appointed mental
health expert and his trial
counsel. Wilson claims that
Dr. Killian per- formed an
inadequate evaluation of his
sanity at the time of the
offense. He also blames
trial counsel for not
developing evidence of his
insanity and for not
requesting a confidential
mental health evaluation
before trial. In support of
these claims, Wilson relies
primarily on the report of
Dr. Brad Fisher, a clinical
forensic psychologist
appointed by the district
court to assist with the
preparation of Wilson's
federal habeas petition.

Dr.
Fisher met with Wilson,
examined Wilson's medical
and family history, and
reviewed portions of the
transcript from Wilson's
trial. Dr. Fisher found"the
evidence is sug- gestive but
not conclusive about the
existence of a temporary
condi- tion that might have
led to a plea of insanity."
However, he concluded there
was "little evidence of a
permanent major thought
disorder, psy- chosis, or
major organic impairment."
1

A.

We first
consider Wilson's arguments
relating to the evaluation
performed by Dr. Killian. In
Ake v. Oklahoma , the
Supreme Court held that
under some circumstances a
state must assure an
indigent defendant "access
to a competent psychiatrist
who will conduct an
appropriate examination and
assist in evaluation,
preparation, and pre-
sentation of the defense."
470 U.S. 68, 83 (1985).
Wilson aims his attack
solely on whether Dr.
Killian conducted
an"appropriate" examination.
He contends that, had Dr.
Killian conducted one, he
would have uncovered the
information discussed in Dr.
Fisher's report.

We
disagree. The Constitution
does not entitle a criminal
defendant to the effective
assistance of an expert
witness. To entertain such
claims would immerse federal
judges in an endless battle
of the experts to determine
whether a particular
psychiatric examination was
appropriate. See Harris
v. Vasquez , 949 F.2d
1497, 1518 (9th Cir. 1990);
Silagy v. Peters ,
905 F.2d 986, 1013 (7th Cir.
1990). Further- more, it
would undermine the finality
of state criminal
convictions, which would
constantly be subject to
psychiatric reappraisal
years after the trial had
ended. Harris , 949
F.2d at 1517-18; Silagy
, 905 F.2d at 1013.

This
circuit consistently has "rejected
the notion that there is
either a procedural or
constitutional rule of
ineffective assistance of an
expert witness, rather than
ineffective assistance of
counsel." Pruett v.
Thompson , 996 F.2d
1560, 1573 n.12 (4th Cir.
1993); see also Poyner v.
Murray , 964 F.2d 1404,
1418 (4th Cir. 1992);
Waye v. Murray , 884
F.2d 765, 766-67 (4th Cir.
1989) (per curiam). For
example, the defendant in
Waye claimed that his
psychiatrist had not
performed adequately because
he had failed to emphasize
Waye's diminished capacity
in his trial testimony. We
rejected this claim and
observed:

[i]t will
nearly always be possible in
cases involving the basic
human emotions to find one
expert witness who dis-
agrees with another and to
procure an affidavit to that
effect from the second
prospective witness. To
inaugurate a consti-
tutional or procedural rule
of an ineffective expert
witness in lieu of the
constitutional standard of
an ineffective attor- ney,
we think, is going further
than the federal procedural
demands of a fair trial and
the constitution require.

884 F.2d
at 767.

Waye
thus squarely forecloses
Wilson's argument to the
extent that he grounds it in
a right to effective
assistance from Dr. Killian.
Wil- son's attempt to locate
such a right in the Ake
decision also fails.
Although Ake refers
to an "appropriate"
evaluation, we doubt that
the Due Process Clause
prescribes a malpractice
standard for a court-
appointed psychiatrist's
performance. Rather, the
decision in Ake
reflects primarily a concern
with ensuring a defendant
access to a psychiatrist
or psychologist, not with
guaranteeing a particular
sub- stantive result. See
Parker v. Norris , 64
F.3d 1178, 1185 (8th Cir.
1995); Harris , 949
F.2d at 1516-17;
Henderson v. Dugger ,
925 F.2d 1309, 1316 & n.23
(11th Cir. 1991);
Granviel v. Lynaugh ,
881 F.2d 185, 192 (5th Cir.
1989). The defendant in
Ake , unlike Wilson, did
not receive any evaluation
of his sanity at the time of
the offense. 470 U.S. at 72.

The Court
distinguished Ake's
situation from two earlier
decisions where the
defendants, like Wilson, had
received such evalu- ations
and, thus, were not deprived
of due process. Id.
at 85 (distin- guishing
United States ex rel. Smith
v. Baldi , 344 U.S. 561
(1953), and McGarty v.
O'Brien , 188 F.2d 151
(1st Cir. 1951)). In this
context, the precise holding
in Ake was simply
that the failure to provide
any evaluation did not
comport with the Due Process
Clause. See, e.g. ,
id. at 74 (describing
holding as requiring a state
to "provide access to
a psychiatrist's assistance")
(emphasis added); id.
at 83 (describing the
Court's concern "that the
indigent defendant have
access to a competent
psychiatrist for the purpose
we have dis- cussed") (emphasis
added); cf. Tuggle v.
Netherland , 516 U.S.
10, 12 (1995) (per curiam) (describing
holding in Ake as
requiring the "assis- tance"
of a psychiatrist).

The above
comments serve to illuminate
our differences with the
partial concurring opinion.
That opinion would hold that
the Due Pro- cess Clause
guarantees Wilson the right
to a thorough psychiatric
examination that meets "the
minimum standard of care set
by the clin- ical psychology
profession." Post at
20 (Michael, J., concurring
in part and concurring in
the judgment).

Drawing
from psychiatric texts, the
partial concurrence insists
that due process requires an
exam that includes "a
careful analysis of Wilson's
medical records, compilation
of an accurate social
history (including any
history of mental illness or
substance abuse), and a
complete mental and physical
examination (employing
whatever diagnostic tests
were appropriate under the
cir- cumstances)." Post
at 20, n.3.

We cannot
accept this position. As an
initial matter, it reads
more into the phrase "appropriate
[psychiatric] examination"
in Ake , 470 U.S. 68,
83 (1985), than that
decision will bear.
Significantly, there is no
mention in Ake of the
critical language advanced
by the partial concurrence,
namely the entitlement to
some federally supervised
standard of psychiatric care.

Moreover,
although the partial
concurrence purports to
distinguish between "an
appropriate examination from
the psychiatrist" and a
"general right to effective
assistance of a psychiatrist,"
post at 30, they turn
out to be one and the same.
Indeed, the partial
concurrence acknowledges
that the basic inquiry is a
malpractice determination.
See post at 29 ("[T]he
right to counsel deals with
lawyer malpractice while the
right to a psychiatrist
deals with psychiatrist
malpractice.") (emphasis
omitted). It is easy to see
where this position would
lead. "The ultimate result
would be a never-ending
battle of psychiatrists
appointed as experts for the
sole purpose of discrediting
a prior psy- chiatrist's
diagnosis." Harris ,
949 F.2d at 1517 (emphasis
omitted) (quoting Silagy
, 905 F.2d at 1013).
Indeed, the partial
concurrence's use of Dr.
Fisher's report to pick at
Dr. Killian's earlier
conclusions demonstrates the
psychiatric quagmire in
which the recognition of
this new constitutional
claim would immerse us.

Finally,
we are reluctant to permit
the purely hypothetical
horror story advanced by the
partial concurrence to
establish a broad, free-
standing constitutional
claim to the effective
assistance of a psychia-
trist. The Due Process
Clause does not require this
further transfer of function
from its traditional state
court locus to federal
collateral review. "A
conclusion to the contrary
would require . . . federal
courts to engage in a form
of `psychiatric medical
malpractice' review . . . of
state court judgments."
Harris , 949 F.2d at
1517 (emphasis omit- ted) (quoting
Silagy , 905 F.2d at
1013). It is clear that
Wilson com- mitted the acts
which resulted in his
capital conviction. The path
lit by the partial
concurring opinion refocuses
the federal habeas inquiry
from actual to legal
innocence to a much greater
extent than we are willing
to do. See Calderon v.
Thompson , 118 S. Ct.
1489, 1502-03 (1998) (distinguishing
between claims of actual and
legal innocence).

Even if
Ake 's use of the
term "appropriate" suggests
that an exami- nation must
satisfy some minimal level
of professional competence,
Dr. Killian has clearly
satisfied it here. In May
1993, he interviewed Wilson
for approximately ninety
minutes to determine his
compe- tency to stand trial
and his sanity at the time
of the offense. At this
meeting, he explored
Wilson's educational
background, medical history,
and criminal record.

Dr.
Killian also evaluated
Wilson's cogni- tive
processes and understanding
of the legal proceedings
against him. Based on
Wilson's criminal records
and this interview, Dr.
Killian concluded that
Wilson was competent to
stand trial and was not suf-
fering from a significant
mental disease or defect at
the time of the offense.

In
November 1993, Dr. Killian
again met with Wilson and
discussed his general
psychiatric condition,
background, and current
status. Though Dr. Fisher
reviewed more records than
Dr. Killian and explored
Wilson's mental state in
greater detail, his deeper
explora- tion into Wilson's
past does not demonstrate
that Dr. Killian's exami-
nation was inappropriate.

Finally,
Wilson himself appears to
have been partly responsible
for the difficulties that
Dr. Killian encountered in
conducting a more complete
examination. During the
November 1993 meeting,
accord- ing to Dr. Killian,
Wilson refused to discuss "any
of his thoughts, feelings,
or actions during the time
frame which contained the
events which ultimately led
to charges against him." At
a hearing shortly before
trial, Wilson again made
clear to the court that he
did not desire an evaluation.
During the hearing, the
following colloquy took
place between Wilson and the
judge:

THE COURT:
Do you desire the
psychiatric or psychologi-
cal evaluation which you
originally indicated to your
law- yers that you did
desire? Are you giving that
up now?

THE
DEFENDANT: Yes, sir.

Following
this exchange, in an
abundance of caution the
trial court declared a brief
recess so that Wilson could
consult with his attorneys
about this choice. After
that conference, Wilson
reaffirmed his desire not to
speak with Dr. Killian:

THE COURT:
All right, Mr. Wilson. What
is your pleasure with
respect to the psychiatric
or psychological evaluation?

THE
DEFENDANT: I do not want to
speak to him.

THE COURT:
You do not want to speak to
Doctor Killian, correct?

THE
DEFENDANT: Correct.

Dr.
Killian can hardly be
faulted for not conducting a
more thorough evaluation
when Wilson repeatedly, and
after consultation with his
lawyers, declined to discuss
matters further with him.
Thus even if Ake
provided some standard for
an appropriate evaluation,
Dr. Kil- lian's evaluation
of Wilson satisfied it.

B.

Wilson
also attributes the failure
to develop a more complete
men- tal health defense to
his trial counsel. Wilson
alleges two basic errors
constituting ineffective
assistance. First, he claims
that trial counsel
inadequately investigated
possible defenses that
Wilson was insane or lacked
the requisite mens rea to
commit the crimes. Second,
he argues that trial
counsel's October 1993
request for a mental health
evalua- tion was delinquent
and deprived him of the
benefit of a confidential
report. Like the district
court, we find both of these
claims to be meritless.

Wilson's
trial counsel was not
ineffective in declining to
investi- gate his mental
health defenses or to
develop them at trial. The
deci- sion not to pursue
this line of defense more
fully was a reasonable one.
In May, counsel had received
Dr. Killian's report
concluding that Wilson was
not mentally ill at the time
of the offense. To be reason-
ably effective, counsel was
not required to second-guess
the contents of this report.
See Pruett , 996 F.2d
at 1574; Poyner , 964
F.2d at 1419; Washington
v. Murray , 952 F.2d
1472, 1482 (4th Cir. 1991).

Having
received Dr. Killian's
report, counsel
understandably decided "not
to spend valuable time
pursuing what appeared to be
an unfruitful line of
investigation." Bunch v.
Thompson , 949 F.2d
1354, 1364 (4th Cir. 1991).
Indeed, Wilson told counsel
that someone from a
neighborhood crack house had
committed the murder, and
counsel made every effort to
locate and interview any
witness that might have
assisted with such a defense.

Counsel
also reasonably chose not to
develop a mental health
defense at trial. Decisions
about what types of evidence
to introduce "are ones of
trial strategy, and
attorneys have great
latitude on where they can
focus the jury's attention
and what sort of mitigating
evi- dence they can choose
not to introduce." Pruett
, 996 F.2d at 1571 n.9 (citation
omitted); see also Bunch
, 949 F.2d at 1364. Here,
at Wilson's insistence,
counsel presented a story at
trial that Wilson had not
committed the crime, and
Wilson testified to this
effect. To present
simultaneously a defense
that Wilson was insane or
lacked the mens rea to
commit the crime would have
undermined Wilson's
requested strategy and
undercut his own credibility.

Furthermore, even if
counsel's investigation or
presentation had been
deficient in some regard, it
was not prejudicial. Dr.
Fisher's report offers only
limited support for Wilson's
present theory that he was
insane at the time of the
offense or lacked the
requisite mens rea to commit
an intentional crime. Dr.
Fisher concluded that "there
is lit- tle evidence of a
permanent major thought
disorder, psychosis, or
major organic impairment."

In this
respect, his opinion tracks
the May 1993 opinion of Dr.
Killian, who found that
Wilson"was not suffering
from a significant mental
disease or defect, psychosis,
major organic impairment" or
other similar malady at the
time of the offense. Even
where Dr. Fisher's opinions
vary from Dr. Killian's, his
endorsement of Wilson's
present theory is qualified
at best. Though Dr. Fisher
believed that Wilson's
abusive upbringing and his
use of intoxicants around
the time of the offense may
have contributed to a
temporary psychosis, he
found such evidence to be
merely "suggestive but not
conclusive."

Wilson
next presses two claims that
he is actually innocent of
the crimes for which the
jury convicted him. He
maintains that Dr. Fish-
er's report demonstrates
that his voluntary
intoxication at the time of
the offense produced a
temporary insanity. He also
contends that the report
shows his level of
intoxication was so severe
that he lacked the mens rea
to commit an intentional
crime. The district court
found both of these claims
to be defaulted because
Wilson failed to raise them
in state court. Wilson now
asserts that he raises these
claims simply as "`gateway[s]'
through which he may pass to
argue the merits of his
defaulted claims."
Satcher , 126 F.3d at
570.

A
reviewing court must
evaluate the new evidence
alongside any other
admissible evidence of the
defen- dant's guilt, see
Bousley v. United States
, 118 S. Ct. 1604, 1611-12
(1998), and may grant relief
only where "a constitutional
violation has probably
resulted in the conviction
of one who is actually
innocent." Murray v.
Carrier , 477 U.S. 478,
496 (1986). Evaluated under
this "demanding" standard,
see Calderon , 118 S.
Ct. at 1503, Wilson's claims
of actual innocence must
fail.

Here Dr.
Fisher found "little"
evidence that Wilson
suffered from a "permanent"
disorder and merely found it
possible that Wilson might
have been suffering from a "temporary
condition" at the time he
committed the offense. Even
had a juror been apprised of
Dr. Fisher's report, he
would have had almost no
reason to conclude that
voluntary intoxication had
pro- duced a permanent
insanity in Wilson.

Wilson's
claim that he lacked the
mens rea to commit an inten-
tional crime is equally
unavailing. Virginia does
recognize that "when a
person voluntarily becomes
so intoxicated that he is
incapable of deliberation or
premeditation, he cannot
commit a class of murder
that requires proof of a
deliberate and premeditated
killing." Wright v.
Commonwealth , 363
S.E.2d 711, 712 (Va. 1988) (citations
omit- ted).

Nonetheless, a reasonable
juror aware of Dr. Fisher's
assessments still could have
found Wilson guilty beyond a
reasonable doubt. The jury
heard Altomika and Takeshia
testify how Wilson demanded
that they go upstairs, how
he separated them from
Jacque- line, how he
threatened to kill
Jacqueline if the girls did
not open the door after
escaping their bindings, and
how he ordered Jacqueline to
find her car keys. The jury
also heard testimony that
Wilson drove away in
Jacqueline's car. A
reasonable juror surely
could find this course of
conduct to be the product of
a mind capable of
deliberation and
premeditation. See
Mathenia v. Delo , 99
F.3d 1476, 1481-82 (8th Cir.
1996) (rejecting actual
innocence claim that
defendant was inca- pable of
deliberation), cert.
denied sub nom. Mathenia v.
Bowersox , 117 S. Ct.
2518 (1997); Nave v. Delo
, 62 F.3d 1024, 1033
(8th Cir. 1995) (same).

Furthermore, the jury
already was aware of
Wilson's intoxication. It
heard a police officer, who
found Wilson shortly after
the crime, testify that
Wilson was acting peculiar
and suggest that Wilson
might have been "high." It
also heard Wilson testify
that he had been at a bar
with his brother before the
offense and had gone to
Jacqueline's home to smoke
some Kooleys -- cigarettes
laced with cocaine. In light
of the fact that the jury
found Wilson guilty despite
its awareness of his
intoxication, Wilson has
failed to show that, even
with Dr. Fisher's report, it
is more likely than not that
no reasonable juror would
have convicted him. See
Nave , 62 F.3d at 1033.
Thus, Wilson's claims of
actual innocence must fail.

IV.

Wilson
next claims that there was
insufficient evidence to
convict him of attempted
rape. Since Wilson's
indictment listed attempted
rape as the predicate
offense to capital murder,
Wilson uses this claim
indirectly to attack his
death sentence as well.
Finding ample evi- dence to
support the conviction for
attempted rape, both the
Virginia Supreme Court on
direct appeal and the
federal district court on
col- lateral review rejected
this claim.

Though
claims of insufficient
evidence are cognizable on
collateral review, a federal
court's review of such
claims is"sharply limited."
Wright v. West , 505
U.S. 277, 296 (1992) (plurality
opinion); see also
Evans-Smith v. Taylor ,
19 F.3d 899, 905 (4th Cir.
1994) ("The stan- dard is
obviously rigorous.").
Federal review of the
sufficiency of the evidence
to support a state
conviction is not meant to
consider anew the jury's
guilt determination or to
replace the state's system
of direct appellate review.
Wright , 505 U.S. at
292 . Thus, a defendant is
enti- tled to relief only if
"no rational trier of fact
could have found proof of
guilt beyond a reasonable
doubt." Jackson v.
Virginia , 443 U.S. 307,
324 (1979) (footnote omitted);
see also George v.
Angelone , 100 F.3d 353,
357 (4th Cir. 1996), cert.
denied , 117 S. Ct. 854
(1997).

The
Jackson standard "must
be applied with explicit
reference to the substantive
elements of the criminal
offense as defined by state
law." Jackson , 443
U.S. at 324 n.16. In
Virginia, the elements of
attempted rape include a
direct but ineffectual act
toward its consum- mation
and an intent to engage in
sexual intercourse. E.g.
, Fortune v.
Commonwealth , 416
S.E.2d 25, 27 (Va. Ct. App.
1992); Chittum v.
Commonwealth , 174
S.E.2d 779, 781 (Va. 1970).
In this case, Wilson has
failed to show that no
rational trier of fact could
find him guilty of attempted
rape.

Sufficient evidence
supported the jury's
conclusion that Wilson took
an overt act toward
consummation of the rape. On
direct appeal, the Virginia
Supreme Court found that
Wilson's nudity, his
isolating Jacqueline
Stephens from the young
girls, his forcibly binding
Jac- queline naked to her
bed, and the presence of
what appeared to be pubic
hairs and semen on
Jacqueline's body satisfied
the overt act requirement.
452 S.E.2d at 674.

Wilson
challenges this finding on
the ground that the
Commonwealth failed to
introduce evidence establish-
ing that the white substance
observed on Jacqueline's
body was in fact semen and
failed to prove that the
pubic hairs recovered at the
scene belonged to him. We
are unpersuaded. Wilson's
argument ignores the fact
that a federal court
reviewing the sufficiency of
the evidence on collateral
attack must consider the
evidence in the light most
favorable to the prosecution
and must presume that the
jury resolved any conflicts
over the historical facts in
the Common- wealth's favor.
Wright , 505 U.S. at
296 ; Jackson , 443
U.S. at 319 . In finding
Wilson guilty of attempted
rape, the jury clearly could
infer that the white
substance actually was semen
and that the pubic hairs
belonged to him.

Moreover,
such physical evidence is
not even necessary to show
that Wilson took a direct
act toward raping
Jacqueline. See Fortune
, 416 S.E.2d at 28;
Granberry v. Commonwealth
, 36 S.E.2d 547, 548
(Va. 1946). In Fortune
, for example, the court
found sufficient evi- dence
of an overt act when the
defendant removed his pants,
exposed himself, forced the
victim into a bedroom, and
touched her breast dur- ing
a struggle. 416 S.E.2d at
28. On this record, a jury
could find that Wilson, like
the defendant in Fortune
, removed his clothes,
exposed himself, forced
Jacqueline into the bedroom
and touched her at some
point during the encounter,
thereby committing a direct
but ineffec- tual act in
furtherance of raping her.

Sufficient evidence likewise
supported the jury's finding
that Wil- son had formed the
requisite intent to rape.
The Virginia Supreme Court
concluded that Wilson's
actions along with
Jacqueline's state- ment
"Kenny, why you doing this
to me? I go with Pinkey, why
you doing this to me?"
supported a finding of
intent to rape. 452 S.E.2d
at 674. Wilson essentially
argues that this
circumstantial evidence does
not support a finding of
intent to rape but, instead,
shows only an intent to
commit murder. We disagree.
"In cases involving an
attempt to commit a crime,
the fact finder is often
allowed broad lati- tude in
determining the specific
intent of the actor."
Fortune , 416 S.E.2d at
27 (citing Ridley v.
Commonwealth , 252
S.E.2d 313, 314 (Va. 1979)).
A defendant's intent to
commit rape may be shown
through circumstantial
evidence, including the
defendant's conduct and
statements. Fortune ,
416 S.E.2d at 27; Green
v. Commonwealth , 292
S.E.2d 605, 608-09 (Va.
1982); see also Epperly
v. Booker , 997 F.2d 1,
6 (4th Cir. 1993); Inge
v. Procunier , 758 F.2d
1010, 1013 (4th Cir. 1985).

In this
case, in addition to the
physical evidence, the jury
heard testimony that Wilson
was naked, took Jacqueline
into a bed- room, and
ordered Takeshia Banks to
disrobe. Such conduct and
statements are entirely "consistent
with preparation for sexual
inter- course" and "permitted
the trier of fact to infer
that [Wilson] was attempting
to rape [Jacqueline]."
Fortune , 416 S.E.2d at
27-28; see also Green
, 292 S.E.2d at 608-09;
Chittum , 174 S.E.2d at
781; Ingram v.
Commonwealth , 66 S.E.2d
846, 851 (Va. 1951); cf.
Tharrington v. Commonwealth
, 346 S.E.2d 337, 339
(Va. Ct. App. 1986).

Wilson
argues that, under Virginia
law, when the state's proof
of intent is entirely
circumstantial, it must
exclude every reasonable
hypothesis of innocence.
See Rogers v. Commonwealth
, 410 S.E.2d 621, 627
(Va. 1991). But we have
expressly declined to "adopt
Vir- ginia's stricter
standard of review for
sufficiency of the evidence"
on collateral attack and
held that the state was not
required to exclude every
reasonable hypothesis of
innocence. Inge , 758
F.2d at 1014; see also
Jackson , 443 U.S. at
326 (noting that prosecution
not "under an affirmative
duty to rule out every
hypothesis except that of
guilt beyond a reasonable
doubt").

Thus,
Wilson has failed to show
that no rational trier of
fact could have found proof
that he was guilty of
attempted rape beyond a
reasonable doubt, and the
district court prop- erly
rejected this claim. See
Hawkins v. Lynaugh , 844
F.2d 1132, 1136 (5th Cir.
1988) (sufficient evidence
of attempted rape); cf.
Holdren v. Legursky , 16
F.3d 57, 62-63 (4th Cir.
1994) (sufficient evidence
of sexual assault).

V.

Lastly,
Wilson argues that the trial
court should have instructed
the jury about the actual
effects of his life sentence.
Specifically, he maintains
the jury should have known
that he would not be
eligible for parole for
twenty-five years. He claims
that both the Eighth
Amendment's guarantee
against cruel and unusual
punishment and the
Fourteenth Amendment's
guarantee of due process
entitled him to such an
instruction. We disagree.

We
previously rejected this
precise argument in
Peterson v. Murray . 904
F.2d 882 (4th Cir. 1990).
Peterson held that a
defendant was not
constitutionally entitled to
inform the jury that he
would have been ineligible
for parole for twenty years.
Id. at 886-87. The
plaintiff in Peterson
, like Wilson, pressed this
argument under both the
Cruel and Unusual Punishment
and Due Process Clauses.
Peterson extended our
earlier holding in Turner
v. Bass , 753 F.2d 342,
353-54 (4th Cir. 1985),
rev'd on other grounds sub
nom. Turner v. Murray ,
476 U.S. 28 (1986), which
had rejected a similar
argument based solely on the
Due Process Clause.

Wilson
attempts to evade the ruling
in Peterson by
arguing that the legal
landscape fundamentally
changed after the Supreme
Court's decision in
Simmons v. South Carolina
, 512 U.S. 154 (1994).
In Simmons , the
Supreme Court held that a
capital defendant, as a
matter of due process,
should be permitted to
inform the jury that he is
parole ineligible if the
state argues that he
presents a future danger.
See id. at 171 (plurality
opinion); id. at 178
(O'Connor, J., joined by
Rehn- quist, C.J., and
Kennedy, J., concurring in
the judgment); see also
O'Dell v. Netherland ,
117 S. Ct. 1969, 1971
(1997).

The
plurality opinion in
Simmons repeatedly
stressed the central
importance of a defendant's
parole ineligibility to its
holding. See, e.g. ,
512 U.S. at 163 -64. And
Justice O'Connor's
concurring opinion, which
was joined by two other
justices and "provid[ed] the
dispositive votes nec-
essary to sustain [the
judgment]," O'Dell ,
117 S. Ct. at 1974, observed
that the Constitution did
not require an instruction
for parole-eligible
defendants. See Simmons
, 512 U.S. at 176 ("In a
State in which parole is
available, the Constitution
does not require (or pre-
clude) jury consideration of
that fact.").

Simmons , thus, has not
altered our decisions in
Peterson and Turner
to the extent they held
that the Constitution does
not entitle defendants to an
instruction about when they
would become eligible for
parole. Simmons did
not address whether the
Eighth Amendment required an
instruction on parole
ineligibility, see
512 U.S. at 162 n.4, so it
can hardly be read to
require such an instruction
for parole- eligible
defendants.

With
respect to the Due Process
Clause, this cir- cuit has
observed that Justice
O'Connor's opinion, which
expressly confined the case
to situations of parole
ineligibility, should be
read as expressing its
essential holding. See
Arnold v. Evatt , 113
F.3d 1352, 1363 n.65 (4th
Cir. 1997), cert. denied
sub nom. Arnold v. Moore
, 118 S. Ct. 715 (1998);
Townes v. Murray , 68
F.3d 840, 849 (4th Cir.
1995). In Arnold ,
consistent with this reading
of Simmons , we held
that a defendant was not
entitled to inform the jury
about the actual effects of
a life sentence or death
sentence since, like Wilson,
he was not parole ineligible.
113 F.3d at 1363.

For the
foregoing reasons, we affirm
the judgment of the district
court.

AFFIRMED

*****

MICHAEL,
Circuit Judge, concurring in
part and concurring in the
judgment:

I concur
in the result the majority
opinion reaches, and I join
in its reasoning, except for
parts II and V. I disagree
with the majority's
suggestion in part II.A.
that the Due Process Clause
does not provide an indigent
criminal defendant with the
right to a court-appointed
psy- chiatrist (or clinical
psychologist) who does not
commit malpractice when
examining the defendant. I
also have an uneasy feeling
that part II.B., which holds
that counsel was not
ineffective for failing to
second-guess the conclusions
of the defense psychologist,
might be misinterpreted to
mean that counsel is not
required to seek a second
opinion when a court-appointed
psychologist conducts a
wholly inad- equate mental
examination.

Further,
although I agree with the
majori- ty's conclusion in
part V that the petitioner
in this case had no due
process right to inform the
sentencing jury when he
would become eligible for
parole, I cannot agree with
the majority's
characterization of the
precedents governing this
issue. I therefore write
separately to express my
views on the right to a
psychiatrist, to emphasize
that a defense lawyer
retains at least some
responsibility for ensuring
that the psychiatrist does
his job, to offer my
interpretation of the cases
dealing with the parole
eligibility issue, and to
explain why I would affirm
the district court's denial
of the petitioner's habeas
claims.

I.

I have no
quarrel with the majority's
observation that "[t]he
Consti- tution does not
entitle a criminal defendant
to the effective assistance
of a [court-appointed]
expert [psychiatric] witness,"
ante at 5. That is a correct
statement of the law in this
circuit. See Waye v.
Murray , 884 F.2d 765,
766-67 (4th Cir. 1989);
see also Pruett v. Thompson
, 996 F.2d 1560, 1573
n.12 (4th Cir. 1993);
Poyner v. Murray , 964
F.2d 1404, 1418-19 (4th Cir.
1992).

However,
the petitioner, Kenneth Wil-
son, does not say that he
was entitled to "effective
assistance" from his court-appointed
clinical psychologist, Dr.
Don Killian. Wilson's
argument is more
circumscribed. He does not
claim that he can chal-
lenge every aspect of Dr.
Killian's performance
as"ineffective." Rather,
Wilson maintains only that
Dr. Killian was required to
pro- vide him an "appropriate"
examination. This rule,
Wilson argues, is compelled
by Ake v. Oklahoma ,
470 U.S. 68 (1985), which
held that an indigent
defendant has a due process
right to psychiatric assis-
tance. See id. at 83
("[T]he State must, at a
minimum, assure the
defendant access to a
competent psychiatrist who
will conduct an appropriate
examination . . . .").
According to Wilson, Ake
required Dr. Killian to
provide him with a sanity
examination that met the
minimum standard of care for
clinical psychologists. 1 Wilson also claims
that his evidence shows that
Dr. Killian's examination
failed to meet that standard.
I agree with both arguments.
2 However, I
would deny Wilson's claim
for other reasons.

The
majority expresses some
doubt about (but does not
squarely reject) Wilson's
claim that he was entitled
to an appropriate examina-
tion, see ante at
5-6. The majority's doubt is
based on the point that
Ake does not "guarantee[
] a particular substantive
result," ante at 6. Of
course, Ake does not
require that a state provide
an indigent defen- dant with
a psychiatrist who will come
to a favorable conclusion,
cf. Poyner , 964 F.2d
at 1419, or look for
evidence of specific
psychiatric afflictions,
see Pruett , 996 F.2d at
1573, or make the "correct"
diag- nosis, see, e.g.
, Washington ,
952 F.2d at 1482. But Wilson
does not claim that Dr.
Killian should have provided
more favorable results, or
looked for specific mental
disorders, or rendered the "correct"
conclu- sion regarding his (Wilson's)
sanity. Wilson argues only
that Ake guaranteed
him an examination that was
not so flawed that it consti-
tuted malpractice. I agree
with Wilson's reading of
Ake . Due process
required Dr. Killian to give
Wilson a thorough
examination that met the
minimum standard of care set
by the clinical psychology
profession. 3

The
majority appears to disagree.
Ake 's focus, the
majority reminds us, was on
"ensuring a defendant
access to a psychiatrist
or psycholo- gist." Ante at
6. This statement, while
true, gets us nowhere. Of
course, Ake did not
explicitly decide whether an
indigent defendant is
entitled to a court-appointed
psychiatrist whose
psychiatric exami- nation
does not constitute
malpractice. The case did
not present that question
because the defendant there
received no sanity
examination whatsoever.
See Ake , 470 U.S. at 72
-74.

However,
Ake 's reasoning
suggests a broader rule,
that a court-appointed
psychiatrist cannot commit
malpractice when examining a
defendant. As Ake
explains, the right to a
court-appointed psychiatrist
is a logical extension of
the right-to-counsel cases,
which recognize that "meaningful
access" to justice under the
Due Process Clause means
providing all of the "tools"
necessary for an adequate
defense. See id. at
76-77 (citing Gideon v.
Wainwright , 372 U.S.
335 (1963); Douglas v.
California , 372 U.S.
353 (1963); Strickland v.
Washington , 466 U.S.
668 (1984); Evitts v.
Lucey , 469 U.S. 387
(1985)). Ake 's
reference to these cases,
which recognize that the
right to counsel is really
the right to effective
assistance of counsel,
was no accident: the Ake
Court meant for the
right to a psychiatrist to
operate somewhat like the
right to counsel. 4

By
explaining that a
psychiatrist was a
defense"tool," the Ake
court meant for that
tool to be fully
functional . Cf.
Harris v. Vasquez , 949
F.2d 1497, 1530 (9th Cir.
1990) (as amended Aug. 21,
1991) (Noo- nan, J.,
dissenting) ("The emphasis
on tools is an emphasis on
func- tion. A non-functioning
tool is useless; so is a
non-functioning psychiatrist.")
Thus, although Ake 's"precise
holding" gives an indi- gent
defendant access to a
psychiatrist, see
ante at 6, Ake 's
reasoning is not so confined.
And none of the majority's
citations to Ake
suggest otherwise. 5

We do not
have to scrutinize Ake
's reasoning closely to
understand why the due
process right to a court-appointed
psychiatrist necessarily
encompasses the right to an
appropriate
examination by that psychia-
trist. Simple logic dictates
that without the latter
right the former is
meaningless. An example is
helpful here. In the
majority's view, a state
apparently would fulfill its
duty under Ake by
appointing a com- petent
psychiatrist (with all the
right credentials) to
examine a defen- dant, even
if the psychiatrist performs
a wholly inadequate
examination. Let us say, for
example, that a psychiatrist
saw the defendant for only
five minutes, in which time
the doctor's only "di-
agnostic tests" were to ask
the defendant his name and
ask him to count to 100.
6

This "examination,"
where the psychiatrist
plainly did not do his job,
cannot be all that Ake
guarantees. Such an
examination is essentially
the same as no examination
at all. It is a denial of
access to a psychiatrist,
just as in Ake .
See Harris , 949 F.2d at
1531 (Noo- nan, J.,
dissenting) ("Ineffective
psychiatric aid is no aid at
all."). Unless Ake 's
guarantee of the assistance
of psychiatrist is an empty
one, due process must
require that a court-appointed
psychiatrist pro- vide an
indigent defendant with an
adequate mental
examination. Cf.
Strickland , 466 U.S. at
685 -86 (explaining why the
right to counsel is the
right to effective
assistance of counsel);
Evitts , 469 U.S. at 394
- 96 (same). Therefore, I
would hold that a defendant
has the right to an "appropriate"
mental examination, just as
Ake said. See
Starr v. Lockhart , 23
F.3d 1280, 1289-90 (8th Cir.
1994) ("As Ake
explains, due process
requires access to an expert
who will conduct, not just
any, but an appropriate
examination."); see, e.g.
, Ford v. Gaither
, 953 F.2d 1296, 1298-99
(11th Cir. 1992) (holding
that the state-appointed
psychiatrist's examination
was inadequate under Ake
when the psy- chiatrist
simply interviewed the
defendant about the events
on the day of the crime);
cf., e.g. , Cowley v.
Stricklin , 929 F.2d
640, 644-45 (11th Cir. 1991)
(holding that the aid
provided by the defense
psychi- atrist failed to
satisfy Ake 's
mandate when the
psychiatrist did not examine
the defendant). 7

The
majority does not squarely
decide this issue, though.
Instead, it says that "[e]ven
if Ake 's use of the
term `appropriate' suggests
that an examination must
satisfy some minimal level
of professional com- petence,
Dr. Killian has clearly
satisfied it here." Ante at
8; see also ante at 6
(explaining why the
examination supposedly met
the stan- dard of care).
Therefore, the Ake
question appears to be left
for another day.

I cannot
agree with the majority that
Dr. Killian performed an "ap-
propriate" examination. This
is fact-finding, and the
record does not support it.
Dr. Killian's ninety-minute
interview of Wilson (in
which Dr. Killian did not
perform a single diagnostic
test or consult any of
Wilson's medical records)
and Dr. Killian's half-page
"report" (which summarily
concluded that Wilson was
sane at the time of his
offense) did not "clearly"
meet the standard of care.

In fact,
my reading of a report by
Dr. Brad Fisher, a clinical
psychologist who examined
Wilson in 1997, suggests
that Dr. Killian's May 1993
examination of Wilson fell
short of the standard. Dr.
Fisher's examination of
Wilson is a model of
professional care, in sharp
contrast to Dr. Killian's
examination. Dr. Fisher
interviewed Wilson,
performed a full battery of
tests on him, studied (among
other things) Wilson's
medical records, and
obtained a full social and
medical history (for which
he consulted sources
independent of Wilson).
Further, Dr. Fisher reviewed
Dr. Killian's notes and
report from the May 1993
examina- tion. According to
Dr. Fisher, "Dr. Killian
drew his conclusions with-
out conducting a complete or
comprehensive investigation"
of Wilson's mental health
history.

Further,
Dr. Fisher wrote, Dr.
Killian should have studied
the "considerable available
data" concerning Wil- son's
mental condition, including
Wilson's medical records and
his- tory of substance
abuse, "rather than basing
opinions strictly on his
interview." "At a minimum,"
Dr. Fisher said, Dr. Killian
should have considered
information regarding "the
level of drugs in Mr.
Wilson's system" at the time
of the offense. Although the
Constitution did not give
Wilson the right to an ideal
examination like the one
provided by Dr. Fisher, it
required an examination and
diagnosis that reflected an
accepted minimum of skill
and care. Dr. Fisher's
report suggests that Dr.
Killian's abbreviated
interview of Wilson did not
meet the relevant standard
of care because Dr. Killian
failed follow the bare
minimum of procedures
necessary for an adequate
sanity examina- tion. This
was enough to create an
issue of fact about whether
Dr. Kil- lian's May 1993
examination of Wilson
constituted malpractice.
8

Despite
my disagreement with the
majority on the Ake
issue, I agree that Wilson's
petition should be denied. I
would hold that Wil- son's
Ake claim was
procedurally defaulted.
Wilson argues on appeal that
he is not barred from
raising the Ake claim
because his default was
excused. Even if this excuse
was valid (it is not; see
part II.B.), I would not
allow Wilson to raise it to
negate the procedural
default of his Ake
claim. Wilson waived this
excuse by failing to mention
it in district court. There,
Wilson did not respond to
the Common- wealth's
argument that he
procedurally defaulted his
Ake claim by
asserting that any default
was excused. Rather, Wilson
argued that he had presented
his Ake argument in
state court.

Of course,
we have the discretion to
address issues not raised
below to prevent a
miscarriage of justice.
However, I am convinced that
no injustice would result
from the refusal to address
Wilson's Ake claim.
First, as the majority ably
explains, Wilson failed to
make out a claim of actual
innocence. See ante
at 12-13. Thus, the failure
to address the claim would
not result in the execution
of an innocent man. Second,
as the majority correctly
concludes, the violation of
Wilson's Ake right
was harmless beyond a
reasonable doubt. Even if
Dr. Killian had provided
Wilson with an appropriate
mental examina- tion, there
is no reason to believe that
the doctor would have made a
different assessment of
Wilson's sanity. See
ante at 10-11.

Third,
Wilson has not convinced me
that he would have avoided a
death sen- tence if Dr.
Killian's first examination
had been appropriate. Dr.
Kil- lian was charged with
assessing Wilson's sanity in
that examination, not with
finding mitigating evidence.
An appropriate examination
might have unearthed some
mitigating evidence, but
Wilson has not said what
that might be or how it
might have affected his
sentence. Therefore, I see
no injustice in applying the
normal waiver rule to bar
Wilson from claiming, for
the first time on appeal,
that his procedural default
was excused.

II.

As an
alternative to his Ake
claim, Wilson argues
that his counsel was
constitutionally ineffective
under Strickland v.
Washington , 466 U.S.
668 (1984), for failing to
(1) explore adequately an
insanity defense and (2)
file a timely request for a
second mental examination (to
develop mitigation evidence
in anticipation of
sentencing). The majority
rejects Wilson's first claim,
reasoning that "[t]o be
reason- ably effective,
counsel was not required to
second-guess" Dr. Killian's
conclusion from the May 1993
examination that Wilson was
not insane at the time of
the offense. Ante at 10.

The
majority rejects Wilson's
second claim on the ground
that counsel's decision not
to seek a second examination
sooner was not unreasonable
because "Dr. Killian already
had concluded that Wilson
was sane at the time of the
offense." Ante at 10 n.2. I
disagree with both of the
majority's conclu- sions.
For the first claim, our
main focus ought to be on
the psycholo- gist's
examination, not on
counsel's appraisal of it.
Further, defense counsel was
ineffective in preparing Dr.
Killian for the first
examina- tion and, possibly,
for failing to obtain a
second opinion. For Wilson's
second claim, defense
counsel was ineffective for
not filing a timely request
for a second examination.
Still, both claims were
procedurally defaulted.

A.

While I
would recognize a right to
an appropriate mental
examina- tion under Ake
, the majority has
studiously avoided doing
that here. The majority
seems to say that any Ake
right can only be
enforced through a claim of
ineffective assistance of
counsel. The majority goes
on to hold that the failure
of Wilson's trial counsel to
second- guess Dr. Killian's
sanity evaluation was not
constitutionally ineffective.
Ante at 9-10. I read the
majority's holding to be
based solely on the facts of
this case: since Dr.
Killian's examination was
appropriate, see ante
at 8, there was no reason
for defense counsel to
second-guess the doctor's
methods or his conclusion
that Wilson was sane at the
time of the offense. 9

Therefore,
I do not read the majority
opinion as creating a
general rule that defense
counsel is never required to
second-guess the court-appointed
psychiatrist's mental
evaluation of the defendant.
Such a holding would, if
there was no independent
Ake right to an
appropriate examination,
effectively insulate a
psychia- trist's poor
performance from review and
leave an indigent defendant
with no recourse when he
received an inappropriate
mental examina- tion. And
that is not the law. Even if
I am incorrect to assert (in
part I) that Ake
grants indigent defendants
an independent right
to an appropriate mental
examination, a defendant
must be able to
vindicate his Ake
right to an appropriate
examination through a claim
of inef- fective assistance
of counsel.

A lawyer
is expected to perform compe-
tently in all aspects of his
representation of a criminal
defendant, including (if the
case requires) the assertion
of an insanity defense at
trial or the presentation of
mitigation evidence at
sentencing. An Ake -
mandated psychiatrist is an
important tool for effective
advocacy in both situations,
so defense counsel is
expected to use this tool
with appropriate skill. To
do this defense counsel must,
to some extent, ensure that
a court-funded psychiatrist
does his job. This requires
that a defense lawyer learn
something about how a
psychiatrist can assist him
in defending a criminal
defendant. Thus, the burden
of ensuring that a
psychiatrist performs
adequately for the defense
team (as an advisor,
consultant, witness, etc.)
falls on counsel, just as
the burden of ensuring that
any other witness or member
of the defense team per-
forms adequately falls on
counsel. Counsel is the
expert on conduct- ing a
criminal defense, after all.

Lawyer
oversight is unlikely to
result in full effectuation
of Ake 's mandate,
however. Ake held
that due process requires an
indigent defendant be
provided with "access to a
competent psychiatrist who
will [1] conduct an
appropriate examination and
[2] assist in evalua- tion,
preparation and presentation
of the defense." Ake v.
Oklahoma , 470 U.S. 68,
83 (1985). But a lawyer
usually can be expected to
guar- antee only the second
half of this mandate. As a
trained advocate a criminal
defense lawyer is expected
to know how to defend an
accused in a competent
manner, by (for example)
planning an insanity defense,
investigating the
defendant's background for
mitigating evidence, and
adducing psychiatric
testimony. So, a lawyer can
be expected to know when an
expert's conclusions would
be favorable to the defense,
to understand what
strategies of mitigation
might impress a jury, and to
ensure that the
psychiatrist's testimony is
pres- ented in a compelling
fashion. Still, even the
most diligent and informed
defense lawyer will often be
hard pressed to second-guess
the psychiatrist's methods
and diagnosis in an
examination of the
defendant's sanity. This is
because the mental
examination is a part of the
psychiatrist's job that is
totally outside the lawyer's
profes- sional competence.

A
psychiatrist is uniquely
qualified to perform a
psychiatric examination and
render a diagnosis of the
defendant's mental condition.
As a result, while defense
counsel can be expected to
have the know-how to ensure
that the court-appointed
psychiatrist "assist[s] in
evaluation, preparation, and
presentation of the defense,"
counsel rarely will be
qualified to determine
whether the psychiatrist has
"conduct[ed] an appropriate
examination." Unless the
psychia- trist's report or
conclusions are obviously
incoherent, inaccurate,
incomplete, or the like, a
lawyer cannot and should not
be expected to second-guess
the psychiatrist's methods
and diagnosis. Cf., e.g.
, Washington ,
952 F.2d at 1481-82 (explaining
that, on the facts of that
case, defense counsel could
not have been reasonably
expected to second-guess the
psychiatrist's diagnosis).

The
majority does not
distinguish between the
lawyer's role and the
psychiatrist's role, however.
Rather, the majority would
place the full burden of
spotting psychiatrist
malpractice on defense
counsel by putting counsel
in charge of ensuring that
the Ake right is
protected. This is a
questionable arrangement.
The Ake right,
derived from the Due Process
Clause, is separate from and
independent of the Sixth
Amendment right to effective
assistance of counsel. The
former right was first
recognized in Ake ;
the latter right has been
with us much longer, since
Gideon v. Wainwright
, 372 U.S. 335, 345 (1963),
and has for years governed a
lawyer's use of a
psychiatrist as part of the
defense team, see, e.g.
, United States v.
Edwards , 488 F.2d 1154,
1163-64 (5th Cir. 1974).

Further,
these two rights may apply
in differ- ent circumstances.
While I would recognize an
independent Ake right
where (as here) the
defendant's mental
examination is performed by
a court-appointed
psychiatrist, I am less
certain (and I need not say)
whether there is an Ake
right to an appropriate
examination separate from
the right to effective
assistance of counsel when
counsel uses a hand-picked
expert, paid for by the
defense. Moreover, as I have
explained, these two rights
create two different
standards of conduct: the
right to counsel deals with
lawyer malpractice
while the right to a
psychiatrist deals with
psychiatrist malpractice.
Lawyers are not trained as
psychiatrists, and they
cannot be expected to have
the same working knowledge
of psychiatry as an expert
in the field. A lawyer
cannot be expected to
recognize a psychiatrist's
malpractice in all cases
where another psychiatrist
would.

Thus, the
standard for lawyer
malpractice in evaluating a
court-appointed
psychiatrist's examination
is necessarily lower than
the standard for
psychiatrist (or clinical
psy- chologist) malpractice
in conducting the
examination. Therefore, it
would be a dilution of the
Ake right to say that
an indigent defendant must
receive a mental examination
that does not constitute
psychiatrist malpractice
-- but only if the
examination was so inade-
quate that the failure to
recognize the psychiatrist's
malpractice con- stituted
lawyer malpractice.

The
majority apparently
recognizes that, due to lack
of medical and technical
expertise, defense counsel
often will have difficulty
finding fault in a court-appointed
psychiatrist's examination
or in challenging its
conclusions. Cf. ante
at 11 (citing Washington
, 952 F.2d at 1482).
However, the majority seems
content to leave the entire
burden of protecting the
Ake right on counsel. If
protection of the Ake
right does fall entirely on
defense counsel, then
counsel will be expected to
do better than I have just
described in evaluating the
court-appointed
psychiatrist's mental
examination.

In order
to be effective, counsel
will have to do some
homework and know much more
than any lay- man about the
symptoms and effect of
various mental disorders.
Counsel also will have to
study the psychiatrist's
report carefully (and ask
follow-up questions if
necessary) to make sure he
understands its conclusions
and the doctor's reasons
therefor (just as counsel
would if he were using the
report to put on an insanity
defense). Further, counsel
will have to request a
second opinion when he has
any reason to believe that
the psychiatrist bungled the
job. Only such heightened
vigilance will allow counsel
to ensure that the
psychiatrist has con- ducted
an appropriate mental
examination of the defendant.
In my view such heightened
vigilance is necessary for
counsel to discharge his
duty to effectively
represent his client. I
would prefer a different
route, however. I would not
give defense counsel the
whole burden of ensuring
that the psychiatrist's
examina- tion is appropriate.
I would give this task,
which only a psychiatrist is
properly qualified to do, to
the psychiatrist. This would
create a division of labor
that best effectuates both
parts of Ake 's
mandate.

The
psychiatrist, the expert on
mental examinations, would
be respon- sible for
providing the "appropriate
examination," Ake ,
470 U.S. at 83 , while the
lawyer, the expert at
defending the accused, would
be responsible for ensuring
that the psychiatrist "assist[s]
in the evalua- tion,
preparation, and
presentation of the defense,"
id. This rule also
squares with the rule I
endorse in part I, that
there is a constitutional
right to an appropriate
examination from the
psychiatrist but no gen-
eral right to effective
assistance of a psychiatrist.
Further, this rule best
reconciles our cases, which
say that counsel is
responsible for ensuring
that the psychiatrist
assists in the defense,
see Poyner , 964 F.2d at
1418, but also imply that
counsel cannot normally be
expected to second-guess a
psychiatrist's diagnosis,
cf. e.g. , Washington
, 952 F.2d at 1481-82. (Of
course, in those infrequent
cases where the psy-
chiatrist's examination is
so flawed that any competent
defense law- yer should
notice, both the lawyer and
the psychiatrist would be
responsible.)

Since I
would place the brunt of the
burden of ensuring that a
court-appointed
psychiatrist's examination
was appropriate on the
psychiatrist (or clinical
psychologist), not on
counsel, I do not agree that
the central question before
us here is whether counsel
was rea- sonable to rely on
Dr. Killian's report, see
ante at 9-10. The key
ques- tion we should ask is
whether Dr. Killian's first
examination was appropriate.
It was not, assuming that
the facts alleged in
Wilson's petition are true.
See part I, above.

Our
inquiry does not end there,
however. As I have said, in
some cases defense counsel's
failure to recognize a court-appointed
psychi- atrist's obvious
malpractice and request a
second opinion can consti-
tute ineffective assistance
of counsel. 10 Further, counsel can
be ineffective for
causing the psychiatrist
to perform an appropriate
examination, by (for example)
failing to provide the
psychiatrist with access to
all the materials necessary
for an adequate examination.
Here, Wilson's petition
suggests that trial counsel
was ineffective for both
reasons.

First,
despite a court order to
provide Dr. Killian with all
"available psychiatric,
psychological, medical or
social records," counsel did
not provide Dr. Killian with
access to any relevant
records. Counsel did not
provide Dr. Killian with
hospital records which
showed that, at the time of
Wilson's arrest, he was
suffering from
rhabdomyolysis, a condition
produced by severe drug
intoxication. Nor did
counsel provide Dr. Killian
with any documentation of
Wilson's history of
substance abuse. These
records were obviously
essential to a proper
determination of Wilson's
mental condition at the time
of the offense, and counsel
was ineffective for failing
to obtain them for Dr.
Killian. Second, I am not
sure that it was reason-
able for defense counsel to
decide against an insanity
defense (or at least, to
decide against consulting a
second clinical psychologist)
based on Dr. Killian's
report. Here, even a layman
might have ques- tioned the
conclusions reached by Dr.
Killian's short examination
and conclusory report. 11

However,
even if trial counsel was
ineffective with regard to
Wil- son's May 1993
examination, Wilson's claim
does not succeed. First,
Wilson did not argue in
state court that trial
counsel should have obtained
a second mental examination,
and this procedural default
was not excused. See
part II.B. Second, even if
trial counsel was inef-
fective for failing to
provide Dr. Killian with
Wilson's medical records,
Wilson suffered no prejudice
from that mistake. Wilson
has not proved that Dr.
Killian would have testified
that he was insane if the
doctor had performed an
appropriate first
examination. See ante
at 10-11.

B.

The
majority also rejects
Wilson's claim that defense
counsel's failure to obtain
a second mental examination
constituted ineffective
assistance, reasoning that
no second examination was
needed because Dr. Killian
concluded that Wilson was
sane. See ante at 10
n.2. I dis- agree. Even if
counsel thought that Wilson
was sane, counsel ought to
have requested mitigation
evidence from a psychologist.

Dr.
Killian's May 1993
examination of Wilson dealt
with just one potential
mitigating factor, Wilson's
mental state. However, a
second psychiat- ric
evaluation could have
unearthed other kinds of
mitigating infor- mation
about Wilson (such as his
childhood exposure to
physical abuse) that had
little to do with his sanity.
(Here, defense counsel
admitted that a second
examination by Dr. Killian
might uncover mit- igating
factors that would be
helpful at Wilson's
sentencing.)

Thus,
even if it was reasonable
for counsel to decide, in
reliance on Dr. Kil- lian's
report, not to obtain a
further evaluation of
Wilson's mental state,
see, e.g. , Gilbert
v. Moore , 134 F.3d 642,
654-55 (4th Cir. 1998),
petition for cert. filed
, No. 97-9198 (U.S. May 19,
1998), that was no reason
for counsel to forego a
second psychiatric
evaluation.

I would
hold that counsel erred by
waiting to move for a second
examination until two days
after notifying the
trial court that the defense
planned to use mental health
evidence at trial. Counsel's
delay was error because
under Virginia law the
report from any sec- ond
examination was discoverable
by the prosecution as soon
as the defense notified the
court of its intent to use
mental health evidence.
See Va. Code Ann. §
19.2-264.3:1(D) (Michie
1995).

The
result of counsel's failure
to request and obtain a
second examination before
notifying the court that
the defense planned to use
mental health evi- dence was
that the defense team lost
the opportunity to keep the
results of Wilson's proposed
second examination
confidential. Once counsel
realized this mistake and
told Wilson that they would
have to choose between a
non-confidential examination
and no examination at all,
Wilson chose the latter
option. Therefore, counsel's
failure to obtain a
confidential examination
forced Wilson to forego a
second examination and miss
an opportunity to obtain
psychiatric mitigation
evidence at sentencing. This
was ineffective lawyering.

The
majority concludes that
counsel's failure to obtain
a confiden- tial second
examination was harmless,
however, because "counsel
would have been required to
disclose the results of such
an examina- tion" at trial
anyway. Ante at 10 n.2.
Again, I disagree. Wilson
does not claim that he was
harmed directly by the
prospect of the report's
disclosure.

The harm
from counsel's mistake,
Wilson argues, was that it
placed him between a rock
and a hard place. Not
knowing whether the
examination would unearth
helpful or harmful
information for the defense,
Wilson had to decide whether
to forego the examination or
take the chance that
detrimental information
would come out in the
examination and fall into
the Commonwealth's hands.
And, although Wilson's
decision to forego the
second examination was
voluntary, Wilson never
would have had to make this
tough decision if counsel
had not put him in the
unenviable situation of
choosing a confidential
examination or no
examination at all. As a
result of counsel's mistake,
Wilson never had the
opportunity to obtain a
confidential psychological
examination and decide
whether to use that evidence
on its own merit (based on
an informed assessment of
whether the benefit of the
report outweighed any harm
of its disclosure). This
hindered Wilson's ability to
develop mitigating evidence
for sentencing.

Despite
the merit of Wilson's
ineffective assistance of
counsel claim, I would hold
that it is procedurally
barred. In his state habeas
petition, Wilson raised a
substantive claim that he
was denied a sec- ond
examination, but he made no
allegation that his problem
arose due to bad lawyering.
And, Wilson fails to
convince me that this
default is excused because
the "state corrective
processes" were either
absent or inadequate to
vindicate his right, see
28 U.S.C. §
2254(b)(1)(B) (1994). First,
Wilson is simply wrong to
say that he could not raise
his claim in state habeas
proceedings. In Virginia it
is possible to raise an
effective assistance of
counsel claim in a habeas
petition, even though the
claim was not raised at
trial or on appeal. Cf.
Walker v. Mitchell , 299
S.E.2d 698, 699-700 (Va.
1983).

Second,
Wilson was not prejudiced
when the state court did not
notify habeas counsel of his
appointment until two months
prior to the deadline for
filing the state petition.
This mistake (which cut
counsel's time to file in
half) is troubling, but it
did not prejudice Wilson's
ability to file a state
habeas petition. Indeed,
Wilson's habeas counsel
eventually filed a
substantial petition. And,
even if counsel was
ineffective for filing to
include all the points in
the petition that Wilson
wanted to raise, this does
not excuse Wilson's
procedural default. See
Mackall v. Angelone ,
131 F.3d 441, 449 (4th Cir.
1997) (en banc), cert.
denied , 118 S. Ct. 907
(1998).

III.

Finally,
I would also reject Wilson's
claim that he should have
been allowed to inform the
sentencing jury he was
ineligible for parole for 25
years. As the majority
explains, Simmons v.
South Carolina , 512
U.S. 154 (1994), held that
when the only alternative
sentence to death is life in
prison without the
possibility of parole (and
the state puts future
dangerousness at issue), due
process requires that the
defendant be allowed to
inform the sentencing jury
that he is parole ineligible.
See ante at 17 (citing
Simmons , 512 U.S. at
178 (O'Connor, J.,
concurring in the judgment)).

I agree
with the majority's
conclusion that Simmons
does not control in
Wilson's case because the
alternative sentence to
death for Wilson was life in
prison with the possibility
of parole after 25 years.
12 As a result,
the exten- sion of
Simmons to Wilson's case
would be a new rule. Cf.
O'Dell v. Netherland ,
117 S. Ct. 1969, 1971
(1997). However, I hesitate
to join the majority's
discussion of Simmons
. The majority is wrong to
say that our decisions,
either pre- or post-
Simmons , govern the
substantive question
presented by Wilson. 13

Were we
squarely presented with the
question whether to extend
the Simmons rule as
Wilson argues, we would not
be constrained from doing so
by our own precedents.
Further, I disagree with the
majori- ty's dicta
discussing of the scope of
Simmons . See
ante at 17 ("[T]he
Constitution does not
entitle defendants to an
instruction about when they
would become eligible for
parole.").

We do not
address the full scope of
Simmons today, just the
question before us. Thus, we
do not decide whether in
some other case Simmons
might compel a
sentencing court to allow a
capital defendant to inform
the jury of the true effect
of an alternative sentence,
even if that sentence has
the possibility of parole.
For example, if Wilson had
established that his term of
25 years of parole
ineligibility extended
beyond his reasonable life
expectancy, so that the
actual effect of the
sentence would be that the
only alternative to death
was life without any
possibility of parole, that
might have brought Wilson's
case within the rule of
Simmons . Wilson has not
made this argument, so I
have no difficulty in reject-
ing his Simmons claim.

*****

FOOTNOTES

1. The parties engage in a
protracted fight over
whether these claims are
procedurally defaulted. The
Commonwealth charges that
Wilson failed to raise any
of these complaints until
his federal habeas petition.
Wilson retorts that he has
several grounds establishing
cause and prejudice to
excuse any default such as a
lengthy delay in notifying
state habeas counsel of his
appointment. Because we
believe Wilson's claims to
be meritless in all events,
we need not resolve this
dispute.

2. For similar reasons, we
reject Wilson's argument
that counsel was ineffective
for not requesting a
psychiatric evaluation until
the end of October 1993.
Since Dr. Killian already
had concluded that Wilson
was sane at the time of the
offense, counsel's decision
not to seek another
evaluation sooner was hardly
unreasonable. Furthermore,
upon giving notice of an
intent to present
psychological evidence in
mitigation, coun- sel would
have been required to
disclose the results of such
an evaluation -- regardless
of when it was requested;
thus, the timing of the
request could not affect the
trial's outcome. See
Va. Code Ann. § 19.2-
264.3:1.D-E.

3. Wilson briefly argues
that the district court
erroneously denied him an
evidentiary hearing on his
claims of ineffective
assistance. Recently, this
circuit explained that "[e]videntiary
hearings have never been
required on federal
collateral review of state
petitioners' ineffectiveness
claims." Eaton v.
Angelone , 139 F.3d 990,
995 (4th Cir.) (citations
omitted), cert. denied
, 118 S. Ct. 2338
(1998). Wilson has failed to
show how an evi- dentiary
hearing would have aided the
factfinding process. Here
the dis- trict court
carefully considered several
claims of ineffective
assistance and found them
meritless; its failure to
hold an evidentiary hearing
"in no way indicates that
the court slighted these
claims." Id. In light
of our conclusion that an
evidentiary hearing was
unnecessary, we need not
decide whether AEDPA
independently might bar a
hearing on these claims.
See 28 U.S.C. § 2254(e).

1. None of our cases have
dealt with a claim that a
court-appointed psy-
chiatrist (or clinical
psychologist) committed
malpractice in his examina-
tion of the defendant.
Rather, we have addressed a
claim that a psychiatrist
should have performed better
on the witness stand, see
Waye , 884 F.2d at 766,
767, a claim that defense
counsel could have chosen a
better-qualified
psychiatrist to examine the
defendant, see Pruett
, 996 F.2d at 1573 n.12,
1574 n.13, a claim that
counsel should have shopped
for a psychiatrist who would
give a different diagnosis,
see Washington v. Murray
, 952 F.2d 1472, 1481
(4th Cir. 1991), and a claim
that counsel should have
employed a psychiatrist who
was more adept at developing
imaginative theories of
mitigation, see Poyner
, 964 F.2d at 1418,
1419. Thus, none of our
cases control the narrow
issue raised by Wilson,
whether an indigent
defendant has a right to an
appropriate examination that
meets the standard of care
set by the psychiatric
profession.

2. Further, even if Ake
does not give an
indigent defendant a right
to an "appropriate
examination" that is
independent of the right to
effective assistance of
counsel, I would hold that
the Constitution places a
height- ened responsibility
on counsel to ensure that
the defendant receives an
appropriate examination.
See part II.A., below.

3. This would have included
a careful analysis of
Wilson's medical records,
compilation of an accurate
social history (including
any history of mental
illness or substance abuse),
and a complete mental and
physi- cal examination (employing
whatever diagnostic tests
were appropriate under the
circumstances). See
generally Comprehensive
Textbook of Psychiatry/IV
543-48, 836-37 (Harold
I. Kaplan & Benjamin J.
Sadock eds., 4th ed. 1985).

4. However, I believe that
the Ake right cannot
and should not function
exactly like the right to
effective assistance of
counsel. As I explain in
part II.A., below, I would
recognize the existence of a
narrow right to an
appropriate examination and
require that all other
challenges to the psy-
chiatrist's performance as a
member of the defense team
be brought as challenges to
the adequacy of counsel's
representation. Due process
pro- vides defendants with a
right to an appropriate
examination, see Ake
, 470 U.S. at 83 , but it
provides no right to
effective assistance of a
psychiatrist generally,
see Waye , 884 F.2d at
767.

5. If the Ake Court
had viewed the right to a
psychiatrist as providing
mere access to a
psychiatrist, I expect that
more Justices would have
joined the Chief Justice's
concurring opinion in that
case. See Ake , 470

U.S. at
87 (Burger, C.J., concurring
in the judgment) (reading
the major- ity opinion to
address only the narrow
question of whether a
capital defendant may be
denied "any opportunity
whatsoever" to consult with
a psychiatrist). However, no
other Justice joined the
Chief Justice's opin- ion.

6. This hypothetical may be
extreme, but I can imagine
many other situ- ations in
which a psychiatrist might
perform a grossly inadequate
exami- nation. The doctor
could botch the exam (since
no one is perfect) or he
could be tired, be having a
bad day, or simply be in a
hurry to make some
appointment outside the
office.

7. The criminal justice
system would not be put
under strain if we were to
recognize a defendant's
right to a psychiatrist who
does his job. That
psychiatrists sometimes
disagree with each other
about diagnoses is no reason
to worry that the finality
of convictions will be
undermined, see ante
at 5. Implementing a
malpractice standard would
not allow a defen- dant to
challenge his conviction
just because some other
psychiatrist dis- agrees
with the court-appointed
psychiatrist's diagnosis.
Rather, the petitioner would
have to prove (with the
assistance of a new
psychiatrist) that the court-appointed
expert's examination totally
failed to meet the relevant
standard of care. Of course,
such claims would rarely
succeed. Just as with the
claim of ineffective
assistance of counsel, a
defendant will rarely be
able to prove that his
psychiatrist conducted an
examina- tion that was
constitutionally deficient.

I also am
not concerned that allowing
a defendant to challenge his
psy- chiatrist's performance
will lead to "an endless
battle of ... experts," ante
at 5. Since there is no
right to the effective
assistance of counsel on
habeas review, see
Pennsylvania v. Finley ,
481 U.S. 551, 555 (1987),
there surely would be no
right under Ake to an
appropriate examination on
habeas review. Also, the
limitations on successive
habeas petitions will ensure
that defendants do not try
to raise this claim
repeatedly with a succession
of experts.

8. If the majority is
suggesting, ante at 8, that
Dr. Killian conducted a
second mental examination of
Wilson, I disagree. Dr.
Killian did not per- form a
second examination of Wilson
during their brief second
meeting in November 1993. In
any event, whether Wilson
had a second examina- tion
is irrelevant to his claim
that Dr. Killian committed
malpractice in his first
examination in May 1993.
After the first examination
Dr. Killian concluded that
Wilson was sane at the time
of the offense. This
examina- tion was entirely
unrelated to the second
meeting between Dr. Killian
and Wilson, which was
scheduled by Wilson's
counsel in an attempt to
develop mitigation evidence
for the sentencing phase of
Wilson's trial.

9. Of course, I disagree
with the majority's finding
that Dr. Killian's
examination was appropriate.
See part I, above.

10. This would, I believe,
give rise to two independent
constitutional vio- lations:
a violation of Ake
and a violation of Gideon
.

11. I also cannot agree
that counsel "reasonably
chose not to develop a
mental health defense at
trial" because that defense
was inconsistent with
Wilson's testimony that he
did not commit the crime,
see ante at 10. We
should not speculate that if
Dr. Killian had conducted an
appropriate examination,
defense counsel would have
decided not to put on an
insan- ity defense.

12. But cf. Brown v. Texas
, 118 S. Ct. 355,
355 (1997) (Stevens, J.,
respecting the denial of
certiorari, joined by Souter,
Ginsburg and Breyer, J.J.) (explaining
that when the alternate
sentence to death is life
without the possibility of
parole for 35 years, a rule
prohibiting a defen- dant
from informing the sentence
jury of his parole
ineligibility is in "ob-
vious tension" with
Simmons ); id. at
356 n.2 (suggesting that "the
life- without-parole option
considered in Simmons
is different in degree, but
not in kind, from the
sentencing options at issue
here"); Simmons , 512
U.S. at 163 (Blackman, J.,
joined by Stevens, Souter
and Ginsburg, J.J.) ("In
assessing future
dangerousness, the actual
duration of the defen-
dant's prison sentence is
indisputably relevant.");
id. at 184-85 (Scalia,
J., dissenting, joined by
Thomas, J.) ("I see no more
reason why the United States
Constitution should compel
the admission of evidence
showing that . . . the
defendant would be
nonparolable, than that it
should compel the admission
of evidence showing that . .
., though under current law
the defendant will be
parolable in 20 years, the
recidivism rate for elderly
prisoners released after
long incarceration is
negligible. All of this
evidence may be thought
relevant to whether the
death penalty should be
imposed . . . .").

13. Peterson v. Murray , 904 F.2d 882 (4th Cir.
1990), held that the Eighth
Amendment was not violated
when a court refused to
allow the defendant to
inform the sentencing jury
he was ineligible for parole
for 20 years. See id.
at 886-87. Peterson
did not decide the due
process claim that Wilson
makes. Turner v. Bass
, 753 F.2d 342 (4th Cir.
1985), rev'd on other
grounds sub nom. ,
Turner v. Murray , 476
U.S. 8 (1986), and Townes
v. Murray , 68 F.3d 840,
849 (4th Cir. 1995), cert.
denied , 516 U.S. 1100
(1996), also did not address
the question Wilson raises.
Rather, they dealt with the
issue of whether (pre- and
post- Simmons ,
respectively) due process
requires a sentencing court
to instruct the jury, sua
sponte , that a
defendant is ineligible for
parole. See Turner ,
753 F.2d at 353-54;
Townes , 68 F.3d at
849-50. Further, although
the petitioner in Arnold
v. Evatt , 113 F.3d 1352
(4th Cir. 1997), cert.
denied , 118 S. Ct. 715
(1998), made a claim similar
to the one Wilson makes (that
the jury must be informed,
at the defendant's request,
of"the actual effect of a
life sentence or a death
sentence," id. at
1363), that case did not
explicitly decide the issue
Wilson asks us to decide.
The Arnold court said
that, on the record before
it, the defendant had not
showed that he was ineligi-
ble for parole. Id.
Although the Arnold
court did not say what the
alterna- tive sentence to
death had been, we can
assume that the petitioner
there failed to show that he
was parole ineligible at
any time after his
convic- tion. Thus,
Arnold is
distinguishable from this
case because Wilson was
parole ineligible for 25
years.